CHARLESTON – Gov. Jim Justice added a COVID-19 vaccine exemption bill to the special session call Wednesday that has generated opposition from the medical and business communities.
The bill – HB 335 in the House, SB 3035 in the Senate – says an employer that requires vaccination for hiring or continued employment must grant certain exemptions. They would be granted based on receiving from the current or prospective employee:
— A certification from a physician or nurse practitioner that a vaccine is not safe for that person or the person has natural antibody immunity from COVID-19 exposure or recovery;
— A notarized certificate of religious objection.
The bill prohibits penalizing or discriminating against current or prospective employees who seek exemption and provides for injunctive relief in court.
The legislation applies to public and private employers.
The bill also prohibits mandatory COVID-19 vaccination for admission to any school in the state.
Justice said during his Wednesday COVID briefing, “I’ve stood rock solid that I’m against mandates. I firmly believe that this country is founded upon our rights and freedoms. That’s really the ingredient that makes America great. … Now, I stand behind the rights of our private businesses, but at the same time, they need to comply with the law of the land. This is a common sense bill because federal law already says you have to allow for these exemptions.”
However, the West Virginia Hospital Association and the state Chamber of Commerce both told members of the House Government Organization Committee – which reviewed the bill – that it actually poses potential conflicts with pending and existing federal regulations.
Attorney Mark Carter, representing the Chamber, said current federal regulations require applicants for exemptions to engage in an interactive process with the employer so the employer can determine if the reason for exemption is legitimate and provide reasonable accommodation.
This bill, by allowing the employee to simply present a certificate, he said, bypasses that interactive conflict and sets up state law to conflict with federal law. This puts businesses in danger of liability from two directions: from the feds for violating federal regulations and from employees who can file suits.
It was noted that the proposed penalty for violating the pending OSHA vaccine mandate for businesses with 100 or more employees is $14,000 per day per employee.
Jim Kaufman, WVHA president, also pointed out the potential conflicts with federal regulations. He said all hospitals have their own processes for medical and religious exemptions.
As previously reported, the Centers for Medicare & Medicaid Services is taking action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement.
Kaufman said that 75% of patients across the state participate in Medicare or Medicaid so this bill potentially imperils hospital finances and patient care.
Minority Leader Doug Skaff, D-Kanawha, argued in favor of delaying action on the bill until the OSHA and Medicare/Medicaid regulations are issued.
Delegate Phil Diserio, D-Brooke, pointed out that the Chamber generally supports Republicans over Democrats and voting for the bill flies in the face of that. “If you’re about small business, I’m not going to tell you what to do. I’ll let your conscience be your guide.”
The committee approved the bill 19-6 along party lines. Locally, Democrats Barbara Evans Fleischauer and Evan Hansen voted against it, Republican Terri Sypolt voted for it.
On the House floor, Delegate Lisa Zukoff, D-Marshall, attempted unsuccessfully to have the bill referred to the Health Committee since vaccines concern public health.
It was read a first time and will be on second reading on Thursday. The Senate moved the bill to second reading without a committee reference.
WVU Medicine issued its own statement objecting to the bill: “WVU Medicine opposes the COVID-19 exemptions bill in its current form. We would urge the Legislature to push the pause button and work with key stakeholders and employers across West Virginia to ensure this bill does not unintentionally derail their efforts to protect their employees and the broader public.”